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The following is the transcript of a speech delivered by Dr. Christian Åhlund at the Managua Congress of the ILRS in October of 1986.
SOVEREIGNTY, AGGRESSION, AND INTERNATIONAL LAW
Dr. Christian Åhlund
The topic chosen for my part of this seminar is ‘sovereignty, aggression, and international law’. I can think of no other region in the world, with the possible exception of Afghanistan, where this problem is more clearly illustrated than in Central America and particularly so here in Nicaragua. The clash between aggression and sovereignty is obvious. The situation, as far as international law is concerned is also unusually clear. This statement is based on the fact that the World Court in The Hague recently gave its judgment in the extraordinary case of Nicaragua against the United States of America.
Under these circumstances — considering the time and the place for this seminar — it is hardly possible to speak on the topic of aggression. sovereignty and international law without making the World Court and this remarkable case the theme of the speech.
Out of the horrors and sufferings of World War One grew a strong collective wish to end all wars, to establish a new world order in which all nations would agree to a system where international disputes would find peaceful solutions. One instrument to promote such an idea would be an international tribunal with such authority as to make it a complete substitute for war. The result of these common efforts was the creation in 1920 of the League of Nations and, within its framework, a world court, or as it was formally known ‘the Permanent Court of International Justice’.
One of the nations most instrumental in the creation of the World Court was the United States. In fact the construction of the World Court was designed largely by the celebrated American jurist Elihu Root. The creation of the court was hailed among American politicians and jurist as a great achievement and prompted some enthusiastic comments which the United States government today probably would not want too frequently repeated. In his book ‘The American Struggle for Peace’ in 1926, the American scholar Stephen Bolles wrote: ‘If anything under the sun is Yankee all through, it is the principle of a world court.’ James Brown Scott, in his book ‘The Relation of the United States to the Permanent Court of International Justice’ wrote: ‘The relation of the United States to the World Court is nothing less than that of a parent to a child.’
In the light of history the notion of a World Court with the authority to make it a complete substitute for war did not stand up to reality. Neither the League of Nations nor the Permanent Court of International Justice survived the Second World War, but the ideals on which the world court had been founded were still very much alive after the war. So, when the war was over in 1945, the world court was recreated under the new name of the International Court of Justice, as the principal judicial organ of the newly established United Nations.
The World Court — as it is usually called — is composed of 15 judges who are elected by an absolute majority of both the General Assembly and the Security Council. No two judges may be from the same state.
The selection of the court members is to be carried out with a view toward ensuring that the body as a whole will be representative of ‘the main forms of civilisation and of the principal legal systems of the world’ (article 9 of the UN Statute concerning the international court of justice). Judges serve in an independent capacity and are, according to the statute bound to exercise their powers ‘impartially and conscientiously’. Judges serve for nine years and may be reelected.
No judge may be removed from office except for cause, and only on a unanimous decision of the remaining judges. The judges are employed on a full time basis and are not allowed to hold additional employment. The International Court of Justice may decide disputes between states, which have accepted the courts jurisdiction and may also give advisory opinions on any legal question upon the request of the Security Council or the General Assembly. The judgment of the court is final and cannot be appealed. Each member of the United Nations is legally bound to comply with the Court’s decision in any case in which it has been a party. If one party refuses to obey a judgment of the Court, the other party may take the matter to the Security Council which may take necessary measures to enforce the judgment.
As we have seen, the purpose of the ICJ is to resolve peacefully disputes between nations and thus prevent such disputes from developing into armed conflicts. As we also have seen, however, the authority of the court rests ultimately with the UN Security Council, in cases when a party fails to comply with a judgment rendered by the court.
This construction brings into focus a serious problem. As we know each of the five permanent members of the Security Council has veto power against any decision by that organ. Consequently, each of the world’s five most powerful nations can prevent any decision of the ICJ from being enforced against that nation, even if such a refusal legally constitutes a violation of the UN Charter. At the same time, it goes without saying, that small and weak nations are the primary beneficiaries of an international legal order where conflicts are solved through peaceful litigation rather than by force. The basic test of the whole system of International adjudication then is whether or not a small state in reality can defeat a superpower in a serious conflict only by means of a superior legal case. The recent case before the ICJ between Nicaragua and the United States serves as an interesting illustration to this problem.
On April 9, 1984, Nicaragua initiated legal proceedings against the United States in ICJ claiming that certain actions of the US against Nicaragua constituted violations of international law. The actions on which the court was asked to give its opinion included:
1. The organization, training, armament and support of the Contras.
2. The mining of Nicaraguan waters in the early months of 1984.
3. The launching of armed attacks against Nicaraguan territory during 1983–1984, specifically against certain ports, naval installations and oil storage facilities.
4. The preparation of a manual for the Contras, openly encouraging violations of established international law.
Nicaragua also asked for a provisional order from the court to put an immediate stop to these actions and claimed economic compensation for the alleged violations.
The US objected to Nicaragua’s claims. Its initial defense focused on the issue of jurisdiction, that is whether the court had the right to try the case at all. The rules of the court provide that the court can only hear such cases that the parties in question have agreed to bring before the court. An acceptance of the UN Charter concerning the court is considered to constitute such acceptance. The US accepted the Charter in 1946 but on April 6, 1984, three days before Nicaragua filed its application with the court, the US issued a declaration excluding cases involving any Central American state for a period of two years. Such a declaration, according to the Americans, wiped out any prior acceptance.
But as such, a declaration under the procedural rules of the court is only effective with six months notice; this objection was rejected by the court. The court decided in favor of Nicaragua on both the matter of jurisdiction and concerning the provisional order. Consequently, on May 10, 1984, the court issued an order of interim protection indicating provisional measures which were to be followed in order to protect the legal interests of Nicaragua during the course of the litigation. This decision ordered the US to immediately stop laying mines or otherwise blocking or endangering access to Nicaraguan ports and to stop using threat or use of force against the territorial integrity or the political independence of Nicaragua.
Following the provisional order, the proceedings moved into a second stage, where the issues of jurisdiction and inadmissability were further elaborated. At this point the US once again tried to persuade the court to throw the case out. To this end the US repeated its earlier argument that it had withdrawn its consent to be a party to such a trial before the proceedings were initiated. In addition to this it tried to reinforce its position by introducing new grounds for the inadmissibility of Nicaragua’s claim. The substance of these new grounds was that the character of the dispute in reality was not legal but political. According to the US, the court was not equipped to deal with the complex matter of such a conflict.
In a decision on November 26, 1984, the ICJ by a unanimous vote again rejected the arguments of the US concerning jurisdiction and inadmissibility. Particularly interesting in this context was the fact that the American judge on the court, Stephen Schwebel, voted with the other members of the court in their decision that the arguments of the United States regarding inadmissability were without merit.
Up to this point the US had at least basically followed and respected the procedural rules of the ICJ, in as much as it had participated in the proceedings. Furthermore, after the Court’s provisional order, the most blatant violations of Nicaraguan sovereignty had not been repeated and Congress at this point in time showed some reluctance to fund further adventures by the Contras. Up to this point in the proceedings the international adjudication system had basically survived the test. But things were soon to take a sharp turn for the worse.
On January 18. 1985, citing errors and distortions of law and fact in the Court’s November 26 decision, the United States announced that it would withdraw from further proceedings in the case. The decision of withdrawal was combined with a rather remarkable attack on the court:
‘Each of the court’s holdings ignores or seriously misstates the evidence or law relevant to the issues before the court.’ And on October 7 of the same year the United States went one step further in formally declaring its withdrawal altogether from the compulsory jurisdiction of the ICJ. A State Department press release stated:
‘In 1946 we accepted the risks for our submitting to the court’s compulsory jurisdiction because we believed that the respect owed to the court by other states and the court’s own appreciation of the need to adhere scrupulously to its proper judicial rule would prevent the court process from being used for political ends. These assumptions have now proved wrong.’
Obviously, this was an extraordinary development, especially considering earlier US support for the court and for the international legal system. How extraordinary may to a certain extent be illustrated by the recent World Court case of US Diplomatic and Consular staff in Teheran. ln that case the US accused Iran of having violated international law by occupying the American embassy in Teheran and having taken the staff as hostages. Iran boycotted both the proceedings and the subsequent judgment in favour of the US. This Iranian behaviour was at the time sharply — and correctly — criticised by the US government as undermining and jeopardizing the established international legal order. But only six years later in the case against Nicaragua, the US followed Iran’s example and joined that country as an international outlaw. However, the case in the world court continued without the US. The procedural rules of the court did allow it to continue the proceedings, even with one of the parties absent. And even if nobody after January 18, 1985 would continue to argue the American case, the US had already before its withdrawal presented its main objections to the Nicaraguan charges, apart from questions of jurisdiction and inadmissibility. These main objections were two:
1. Collective self-defence
The US claimed that Nicaragua is launching armed attacks against El Salvador by directly supporting and arming the opposition in that country. According to the US. Nicaragua also subjects Honduras and Costa Rica to armed aggression by frequent intrusions into the territory of these neighbouring states. According to the US, its actions against Nicaragua are carried out on behalf of Nicaragua’s neighboring states as a collective self-defence against the armed aggression by Nicaragua.
2. Intervention to establish democracy
This argument, which has also been called ‘the Reagan doctrine’, goes as follows: The government of Nicaragua has failed to fulfill certain basic promises given to the Nicaraguan people and to the Organization of American States in the so called ‘peace plan’ of July 12, 1979, subsequent to the fall of Anastasio Somoza. These promises include the establishment of democracy and the holding of free elections. American actions against Nicaragua are aimed at forcing the Nicaraguan government to fulfill these promises.
In withdrawing from the proceedings the United States chose not to present any evidence in support of its claim of Nicaraguan armed aggressions against its neighboring countries. If the US, as it claimed, really had access to such evidence, its withdrawal becomes even more difficult to understand.
As the proceedings continued, Nicaragua presented substantial evidence to support its case. This evidence included both documents, such as a CIA manual instructing the Contras in guerilla warfare as well as oral testimony. The witness who drew the most attention was perhaps one ex-CIA agent, David McMichael, testifying in favour of Nicaragua. McMichael stated that US accusations of Nicaraguan involvement in El Salvador in 1981 and 1982 were largely invented in order to justify the organising of the Contras.
Finally, on June 27 this year, more than two years after the proceedings were initiated, the final judgment of the World Court was presented.
Predictably the court found in favour of Nicaragua.
In the judgment the court establishes that the US has used direct force against Nicaragua by mining its waters and attacking its ports, naval installations and oil storage facilities. It has also used indirect force by organizing, supporting and training the contras.
The court does not, however, consider either the continuous US manoeuvres in Honduras or the mere funding of the Contras as a use of force.
According to the court, the direct and indirect uses of force of the US against Nicaragua constitute clear violations of international law, unless there exists legal justification for such actions. The court then proceeds to investigate whether the argument of collective self-defence brought forward by the US constitutes such a justification. According to the court, in case of an established armed Nicaraguan aggression against any of its neighbours such a principle could be applicable. In the case of El Salvador, the court continues, there is evidence — some even provided by Nicaragua itself — that the opposition in El Salvador did indeed receive arms from Nicaraguan territory at least until the early months of 1981. After that period, however, the court finds no evidence that these activities had continued. The court continues to point out that the mere fact that the armed opposition in El Salvador did receive arms from Nicaraguan territory does not automatically make the Nicaraguan government responsible. According to the court, such activities may very well take place without the knowledge of the territorial government.
In any case, says the court, the mere delivery of arms from one state to the opposition in another state does not constitute an armed aggression under customary international law. In tine cases of Honduras and Costa Rica, the court finds that US allegations of frequent, armed Nicaraguan intrusions into the territories of these countries have not been sufficiently proven. The court then concludes that neither the assistance to the opposition in El Salvador nor the alleged intrusions in Honduras and Costa Rica may justify the use of force against Nicaragua in the name of collective self-defence. Furthermore, the court does not find it established that El Salvador, Honduras or Costa Rica have in reality feared any Nicaraguan aggression or formally requested the US to exercise the right of collective self-defence on their behalf.
The conclusion is that as the requirements of collective self-defence have not been satisfied, the US have violated the international legal principle which prohibits the use of threat or force against another state. Neither does the second US objection to this charge, the right to intervene to establish democracy, the so-called Reagan doctrine, meet with the court’s approval. After establishing that there exists no such legally binding Nicaraguan promises, as had been alleged by the US. the court moves on to point out that under international law there simply does not exist any principle allowing intervention in any state only because of its ideology or political system. (So much for the validity of the Reagan Doctrine under international law).
Finally, the court declares that as a consequence of these findings the US will have to pay economic compensation to Nicaragua. The size of this compensation will be decided at a later stage in the proceedings. Nicaragua’s lawyers in the case have indicated that Nicaragua will ask for more than one billion dollars in damages.
The judgment of the court was not unanimous. Most of the findings of the court were supported by a majority of 12 votes against 3, with the American, British and Japanese judges as the most frequent dissenters. In his dissenting opinion the American judge Stephen Schwebel. disagreed with the majority of the court. He finds that U.S. actions Nicaragua were justifiable as acts of self-defence against armed Nicaraguan aggression against its neighbors. Furthermore he accuses Nicaragua of presenting false evidence with the deliberate purpose of hiding the truth and obstructing justice. Nicaragua, states Mr. Schwebel in his dissenting opinion, has not presented itself before the court with clean hands. Such language is unusual in legal opinions and I find it hard to reconcile with the requirements of impartiality that the UN Charter imposes on the members of the court. On one point, however, Mr. Schwebel agrees with the majority of the Court. Faced with the irrefutable evidence of the CIA manual to the Contras, Mr. Schwebel agrees that the content of this manual constitutes a violation of international law.
Even more predictable than the judgment itself was the subsequent reaction of the US government. The spokesman of the State Department, Charles Redman, stated as the judgment was made public: ‘The court is simply not equipped to deal with a case of this nature, involving complex facts and intelligence information.’ Referring to the possibility that the court could order the United States to pay damages to Managua, Mr. Redman said: ‘The court’s decisions are not self-enforcing.’ And only a few days later Elliot Abrams the US Assistant Secretary of State for Inter-American Affairs wrote in an article in the Los Angeles Times, completely ignoring the judgment: ‘The Sandinistas’ continued refusal entitles the freedom fighters to receive from the United States the support they need to defeat the Sandinistas’ totalitarian design.’ But there were also American voices outside the administration that sharply criticized this attitude. Senator Charles ‘Mac’ Mathias, a Maryland republican, who is a member of the Senate Foreign Relations Committee was quoted as saying: ‘I view the decision from the World Court with concern and some sadness. The United States has historically supported the World Court, even helping to create it.’
The critics included both the Washington Post and the New York Times. The Washington Post wrote in an editorial on July 3: ‘In respect to the World Court’s judgment that the United States is violating international law in Nicaragua, the Reagan administration has tried to have it both ways. It chose not to defend itself against Nicaragua’s charges, but now it protests the court’s decision. First the administration looked as if it feared that its case was weak, and now it sounds like a poor loser. This is a dismal performance all around.’
I said earlier today that the fundamental test of the international adjudication system is whether a small and poor country can defeat a superpower only by means of a superior legal case. By thus I mean not only a formal legal victory, but also whether a judgment favouring the small nation is respected and possible to enforce.
It is obvious that in the case which we have examined today the adjudication system has failed the test. US violations of Nicaraguan integrity and sovereignty are continuing and increasing. Clearly there is no intention on the part of the US to pay the damages that the court eventually will award to Nicaragua. And as Charles Redman, the spokesman of the State Department, pointed out in the immediate US reaction to the judgment, the court’s decisions are not self-enforcing.
The late Swedish Prime Minister Olaf Palme wrote in his book ‘Swedish Foreign Policy’ in 1984: ‘For small countries it is always fundamental to uphold the principles of international law. In a world without any common rules — where interaction between nations would approach anarchy — only the big and powerful would prevail. That is why we consider the principles of international law so extremely important — A basic rule of international law is the respect for territorial integrity. This is why we so vigourously have condemned the occupation of Afghanistan as well as the invasion of Grenada.’ If Olaf Palme had lived to experience the present World Court case, he would certainly have added the violations against Nicaragua to that list.
By its conduct before, during and after the case in the World Court, the Reagan administration could not more clearly have demonstrated its contempt of international law and its institutions and it could hardly have done more to undermine that system.
For this the Reagan administration bears a very heavy responsibility.
It has demonstrated hostility and arrogance not only toward Nicaragua but also toward all those small nations of the world, that depend on the respect for the principles of international law for their national security.
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